Harvey v. Hall et al
Filing
41
ORDER AND REASONS - IT IS ORDERED that the 27 motion for summary judgment filed by Plaintiff James Harvey Jr., is DENIED. Signed by Judge Susie Morgan. (bwn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES HARVEY JR.,
Plaintiff
CIVIL ACTION
VERSUS
NO. 17-10952
ROBERT HALL, ET AL
Defendants
SECTION: “E”
ORDER AND REASONS
Before the Court is a motion for partial summary judgment filed by Plaintiff James
Harvey Jr. 1 Defendants Robert Hall and Crete Carrier Corporation oppose the motion.2
Plaintiff filed a reply. 3 For the reasons that follow, the motion for summary judgment is
DENIED.
FACTUAL & PROCEDURAL BACKGROUND
Plaintiff James Harvey Jr. alleges he suffered injury after Defendant Robert Hall
reversed a tractor and trailer into Plaintiff’s vehicle on September 19, 2016. 4 Defendant
Crete Carrier Corporation is the employer of Defendant Hall. 5 It is undisputed that on
September 19, 2016, Plaintiff traveled on Veterans Boulevard in Hammond behind
Defendant Robert Hall. 6 It is undisputed that both vehicles took a right turn onto Seale
Drive and then came to a stop. 7 The parties do not dispute that the vehicles were stopped
for about fifteen seconds before Defendant Hall began to reverse. 8 Plaintiff alleges he
suffered injury after Defendant Hall reversed his tractor and trailer into Plaintiff’s
R. Doc. 27.
R. Doc. 29; R. Doc. 32 (Amended Opposition to Statement of Uncontested Material Facts).
3 R. Doc. 38.
4 R. Doc. 1-2 at ¶¶3-5.
5 R. Doc. 29 at 1.
6 R. Doc. 27-2 at 1; R. Doc. 32 at 1.
7 R. Doc. 27-2 at 1; R. Doc. 32 at 1.
8 R. Doc. 27-2 at 1; R. Doc. 32 at 1.
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vehicle. 9 Defendants contend a collision never occurred. 10 Plaintiff moves for partial
summary judgment on the issue of his contributory negligence, asking the Court to find
Defendants solely and solidarily liable for the injuries he sustained as a result of the
collision with the reversing tractor and trailer. 11
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” 12 “An issue is material if its resolution could affect the outcome of the action.” 13
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing
the evidence.” 14 All reasonable inferences are drawn in favor of the non-moving party. 15
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law. 16
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a genuine issue of material fact.”
To satisfy Rule 56’s burden of production, the moving party must do one of two things:
“the moving party may submit affirmative evidence that negates an essential element of
R. Doc. 1-2 at ¶¶3-5.
R. Doc. 27-2 at 2; R. Doc. 29-2 at 1; R. Doc. 32 at 2.
11 R. Doc. 27.
12 FED. R. CIV. P. 56; see also Celotex, 477 U.S. at 322–23.
13 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
14 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
15 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
16 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell Energy,
Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).
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the nonmoving party’s claim” or “the moving party may demonstrate to the Court that the
nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” If the moving party fails to carry this burden, the motion must
be denied. If the moving party successfully carries this burden, the burden of production
then shifts to the non-moving party to direct the Court’s attention to something in the
pleadings or other evidence in the record setting forth specific facts sufficient to establish
that a genuine issue of material fact does indeed exist. 17
If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the non-movant’s
claim, or (2) affirmatively demonstrating that there is no evidence in the record to
establish an essential element of the non-movant’s claim. 18 If the movant fails to
affirmatively show the absence of evidence in the record, its motion for summary
judgment must be denied. 19 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.” 20 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
Celotex, 477 U.S. at 322–24.
Id. at 331–32 (Brennan, J., dissenting).
19 See id. at 332.
20 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.
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upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’” 21
“Summary judgment is ordinarily (but not always) inappropriate when the issue
involves negligence or contributory negligence.” 22 The Fifth Circuit recognizes that “even
where there is no dispute as to the facts, it is usually for the jury to decide whether the
conduct in question meets the reasonable man standard.” 23 Generally, “[i]ssues that
require ‘the determination of the reasonableness of the acts and conduct of the parties
under all the facts and circumstances of the case, cannot ordinarily be disposed of by
summary judgment.’” 24
LAW AND ANALYSIS
Louisiana employs a comparative fault analysis in tort cases. 25 Article 2323 of the
Louisiana Civil Code provides, “[i]f a person suffers injury, death, or loss as the result
partly of his own negligence and partly as a result of the fault of another person or persons,
the amount of damages recoverable shall be reduced in proportion to the degree or
percentage of negligence attributable to the person suffering the injury.” 26 The driver of a
vehicle that is struck by a reversing vehicle may be partially at fault. 27
21 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsyth
v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–
16 & n.7 (5th Cir. 1992)).
22 Matthews v. Ashland Chem., 703 F.2d 921, 925 (5th Cir. 1983) (citing 10 WRIGHT, MILLER, & KANE,
FEDERAL PRACTICE AND PROCEDURE, § 2729 (2d ed. 1983)).
23 Id. (quoting WRIGHT, MILLER, & KANE, FEDERAL PRACTICE AND PROCEDURE at p. 217).
24 Id. (quoting Gross v. S. Ry. Co., 414 F.2d 292, 296 (5th Cir.1969)).
25 La Civ. Code Art. 2323.
26 La Civ. Code Art 2323.
27 Ward v. Schwegmann Giant Super Markets, Inc., 538 So.2d 1051, 1052 (La. App. 4 Cir. 1989); Mace v.
Turner, 2018 WL 3479226, at *13 (La. App. 3d Cir. 2018); see also Gordon v. United States, 1992 WL 46319,
at *2 (E.D. La. 1992).
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“A motorist must use such diligence and care in the operation of his vehicle as is
commensurate with the circumstances.” 28 Professional drivers, such as truck drivers, are
held to a higher standard of care related to their operation of a vehicle. 29 Generally, the
duty of a backing motorist is one of great care and attention. 30 Louisiana Revised Statute
§ 37:281(A) provides that “[t]he driver of a backing vehicle shall not back the same unless
such movement is made with reasonable safety and without interference with other
traffic.” However, “[a] driver has a duty to drive defensively from the time the driver
witnesses negligent operation of another vehicle or notices other hazards posing
the potential for resulting damage. That duty may include the duty to slow down or
otherwise avoid risks posed by a vehicle ahead.” 31
The parties do not dispute that a truck driven by Defendant Hall executed a
backing maneuver on September 19, 2016 and that a vehicle driven by Plaintiff was
located behind the truck at that time. 32 The parties dispute whether the two vehicles
collided. 33 Plaintiff testified that a collision occurred, and in deposition, Plaintiff
identified pictures depicting the property damage to his vehicle. 34 Defendant Hall stated
that he did not observe any evidence that a collision occurred. 35 The parties dispute
28 Edwards v. Horstman, 687 So.2d 1007, 1011 (La. 1997) (citing Culpepper v. Leonard Truck Lines, Inc.,
208 La. 1084, 24 So.2d 148 (1945)).
29 Davis v. Witt, 851 So.2d 1119, 1128 (La. 2003).
30 Hixon v. Lockhart, 2004 WL 258121, at *5 (E.D. La. Feb. 11, 2004).
31 Edwards, 687 So.2d at 1011 (citing Miller v. Coastal Corp., 635 So.2d 607 (La. App. 3d Cir. 1994); Hebert
v. Lefty's Moving Serv., 389 So.2d 855 (La. App. 4th Cir. 1980).
32 R. Doc. 27-2 at 1; R. Doc. 32 at 1.
33 R. Doc. 27-2 at 2; R. Doc. 32 at 2.
34 R. Doc. 27-5 at 3; R. Doc. 38-1 at 2.
35 R. Doc. 29-1 at 2.
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whether Plaintiff honked his horn after Defendant Hall began to reverse. 36 Plaintiff
testified that he honked his horn. 37 Defendant Hall did not hear a car horn. 38
Plaintiff argues he was not contributorily negligent and that Defendant Hall was
solely at fault for the accident because of Hall’s position as the reversing vehicle and his
status as a professional truck driver. 39 Plaintiff argues that Defendants cannot point to
any act or omission by Plaintiff that contributed to the accident. 40 Defendants argue that
if a collision occurred, Plaintiff was contributorily negligent because he stopped in the
blind spot of Defendant Hall’s truck and could have reversed to avoid the collision or
sounded his horn to alert the reversing truck. 41 Plaintiff testified that he stopped five feet
behind Defendant’s truck and that another 18-wheeler stopped about five feet behind
him. 42 Plaintiff could not recall whether he could see either outside mirror on the truck in
front of him. 43 Defendant Hall testified that he checked his mirrors before reversing and
saw only another truck approximately twenty feet behind him. 44
A determination of whether Plaintiff was contributorily negligent depends on a
resolution of these factual disputes. Summary judgment is generally inappropriate on
issues of negligence or contributory negligence. 45 “[E]ven when there is no dispute as to
the facts, it is usually for the jury to decide” whether a party was negligent or
contributorily negligent. 46 Genuine issues of material fact exist as to whether a collision
R. Doc. 27-2 at 2; R. Doc. 32 at 2.
R. Doc. 27-5 at 2.
38 R. Doc. 29-1 at 1.
39 R. Doc. 27-3.
40 R. Doc. 27-3 at 5.
41 R. Doc. 29 at 7.
42 R. Doc. 29-1 at 4-5.
43 R. Doc. 27-5 at 3.
44 R. Doc. 29-1 at 1.
45 Matthews, 703 F.2d at 925 (5th Cir. 1983) (citing WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 2729).
46 Id. (quoting Wright, Federal Practice and Procedure at p. 217).
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occurred, whether Plaintiff honked his horn, and whether Plaintiff was contributorily
negligent. Plaintiff’s motion for summary judgment is denied.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the motion for summary
judgment filed by Plaintiff James Harvey Jr. 47, is DENIED.
New Orleans, Louisiana, this 1st day of November 2018.
______________________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
47
R. Doc. 27.
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